Land Challenge Acid Test for SADC Tribunal

The SADC Tribunal on land seizures in Zimbabwe is historic in that it
is the first time that a case was brought before it. It is, however,
questionable how the SADC state will abide by the tribunal’s ruling.

WINDHOEK

“My impressions of the last two days in the tribunal is that it was good to see the confidence and strength of the judges,” said a frail and tired-looking Ben Freeth, one of the white commercial farmers in Zimbabwe who face eviction from their farms and are challenging that government’s land acquisition process.

“I almost broke out in tears on quite a number of moments to hear our case finally in court by impartial and objective judges. We have come to build a house and justice.”

Flanked by his father Zach Freeth, who has throughout the trial been very protective and supportive of his son, vice chairperson of the Commercial Farmers’ Union in Zimbabwe Deon Theron, the applicants’ legal representative in Harare, David Drury, as well as commercial citrus farmer Richard Etheredge, Freeth seemed upbeat over the outcome of the legal challenge.

“I would be staggered if this case is not in the favour of my clients,” said Drury. “I cannot see an adverse decision; to do so, would mean that every sinew of justice is torn up.”

It has been a long march for many of these farmers to eventually have their case heard before the historic SADC Tribunal hearing.

The applications of Mike Campbell, William Campbell and 77 other Zimbabwean commercial farmers are challenging the land reform programme of the Zimbabwe government, as being in violation of their rights as provided for in the SADC Treaty and Protocol, of which Zimbabwe is a signatory.

They further claim that the land acquisition process is racist and illegal, where Article 6 of the SADC Treaty states that “member States shall not discriminate against any person on the grounds of gender, religion, political views, race, ethnic origin, culture, ill-health or disability or such other grounds”.

The main case hearing was scheduled to take place on May 28, but was postponed after the Zimbabwe government’s legal team missed the deadline citing “lack of manpower, financial and material constraints” as reasons.

The first hearing of the Campbell case took place in December 11, 2007, where it launched the application for interim relief until the tribunal was able to hear the merits of the case.

On December 12, 2007, the tribunal granted an interim order in favour of Mike Campbell, pending a final ruling on his application this year.

In response, Zimbabwe’s land reform minister, Didymus Mutasa, said his government would abide by the ruling.

However, on January 22 this year, the Supreme Court of Zimbabwe dismissed Campbell’s challenge, with Mutasa stating that his government would continue seizing the farm, despite the tribunal ruling, which blocked the confiscation of the property.

In response, Registrar Justice Charles Mkandawiri of the SADC Tribunal said the matter would be taken to the highest level of SADC – the SADC Summit – if the Zimbabwe government does not comply with its ruling.

The SADC Summit is anticipated to meet in mid-August, but pundits are doubtful if it will have much effect on the actions of the Zimbabwe government.

“It will be interesting to see how the SADC Summit will handle the decision of the tribunal if it is referred to the summit,” said Norman Tjombe, Director of the Legal Assistance Centre.

“SADC has failed Zimbabweans in the past and I do not suspect a drastic turnaround, although patience with the [Robert] Mugabe regime is wearing thin,” Tjombe added.

Professor Nico Horn of the Faculty of Law at the University of Namibia (UNAM), was equally doubtful of a major departure from SADC’s earlier stance on Zimbabwe would be possible, anticipating stances of neutrality from a number of SADC countries.

However, Tjombe maintains that this case remains of historic proportions:

“The Zimbabwe cases before the SADC Tribunal [the main case challenging the land acquisition process and the urgent application to hold the Zimbabwe government in breach of the interim order by the tribunal] are indeed very significant not only for Zimbabwe, where there is a complete breakdown of the rule of law, but also for the southern African region and Africa. SADC, as an institution and its member governments’ commitment to uphold the letter and spirit of the very laws that they have drafted and adopted, is being tested with these land cases.”

The tribunal presiding over the Zimbabwe cases, said Horn, is significant in that the five judges cannot be claimed to be “in the pocket of Britain or the US”.

“It is very significant in that the tribunal is not going to take any nonsense,” ventured Horn, adding, “For the future, it means that it will create a jurisprudence for Africa, it will create credibility, even though it will still take some blood, sweat and tears to get to the point where the European Union, which is the only regional configuration with an enforceable European Bill of Rights has some power of enforcing judgments on member states, stands.”

Another aspect that has come into play during the SADC Tribunal proceedings of the Zimbabwean case is to what extent it can force member states to comply with its orders.

The urgent application brought before the tribunal by the Campbell camp – as the applicants have come to be known as in certain circles – against the non-compliance of the Zimbabwe government of the tribunal order of December and reported cases of beatings and other forms of intimidation and harassment of the very farmers protected under the Tribunal’s order – which the Zimbabwe government ascribed to unruly thugs in Zimbabwe – is proof of the kind of challenges not only of the SADC Tribunal, but indeed, SADC faces to force compliance.

“The SADC Tribunal’s decisions are binding on the parties to the cases, and should be enforced. With a government such as that of Zimbabwe not unaccustomed to ignoring court orders, it will be a real challenge to the legitimacy and relevance of the tribunal and the entire institution of SADC,” said Tjombe.

Horn was of the opinion that despite the ratification of the SADC Treaty, domestic laws still supercede such regional treaties, except that countries are “morally bound” to the treaties they have ratified.

“But Mugabe has in the past ignored international opinion and it is not clear what SADC is going to do. Will [President Thabo] Mbeki and Namibia take a strong stand? The only way [compliance can be forced upon the Zimbabwe government] is by solidarity among SADC members as the tribunal has no police force to enforce such compliance,” said Horn.

So far, said the commercial farmers, compliance has been zero.

Freeth and his in-laws reported to have been subjected to a nine-hour bashing presumably at the hands of a certain Gilbert Moyo and close to 30 others – of which he said 20 had guns on them on June 29, which nearly cost him his life.

Etheredge reported how his farm was invaded on June 15 – with a Zimbabwe high-ranking official “very hungry for land” caught on videotape entering and leaving the premises on the farm while the looting took place.